More States Forcing Prosecutors to Hand Over Evidence — Even When It Hurts Their Case

Since a 1963 Supreme Court ruling, prosecutors have been required to hand over evidence they uncover even when it might help the defendant. Failure to disclose such “exculpatory evidence” — or “Brady material,” named for the Supreme Court case — is considered a violation of the defendant’s constitutionally protected right to due process.

Despite the legal requirement to turn over exculpatory evidence, prosecutors sometimes sit on material they’ve collected, or they may not actively look for such evidence. Law enforcement agencies may not willingly provide it.

“The problem with Brady is it’s pretty much self enforcing,” says Nina Morrison, senior staff attorney with the Innocence Project. “It’s a subjective judgment, and you are asking prosecutors who are competitive to do something that can harm their chances to win a case.”

Now, a small but growing number of states have taken steps to clarify and strengthen the Brady rule requiring disclosure of potential exculpatory material.

Starting in January, judges in New York have begun instructing prosecutors of their obligation not only to turn over materials that may be favorable to the defense, but to seek that information from law enforcement. Prosecutors must disclose such evidence at least 30 days prior to trial, to give defense attorneys enough time to review the material.

Prosecutors who fail to comply can be censured in the form of a public reprimand by a judge.

Criminal justice advocates say strengthening Brady rules is a key part of criminal justice reform. Since 2004, Ohio, North Carolina and Texas have all adopted so-called “open-file” reforms, under which all the files of law enforcement agencies, felony investigators and prosecutors are open to examination by both the prosecution and the defense.

“Brady in practice has fallen far short of its promise,” says John Schoeffel, head of training for the Legal Aid Society. “Whether prosecutors are going to be diligent about finding [evidence] and turning it over is something the defense has no authority over.”